the childcare disparity

Before I had my three children I always worked longer than my contractual hours.  I enjoyed my job and had the time, flexibility and inclination to go the extra mile. Fast forward to having three little ones waddling around with numerous nappies to change, mouths to feed, nursery rhymes to sing and grazed knees to band-aid and my priorities had changed.  For a variety of reasons, my husband and I agreed he would continue in his full-time role and since that time I have not returned to the full-time-plus working schedule.  

I am not alone. Statistics show that whilst the majority of women do return to work after maternity leave, the vast majority return part-time, at least for a few years  Commentators recognise that this is one of the factors impacting the gender pay gap. However, it is also a bit of a chicken-and-egg situation – while it makes financial sense for the higher earner to continue with the breadwinning, women take the lion’s share of childcare responsibilities, and so the cycle continues……

The childcare disparity relates to the childcare responsibilities that largely fall on women which can limit their ability to accommodate certain work patterns compared with men and this can lead instances of direct or indirect discrimination.

Indirect discrimination is unlawful under the Equality Act.  The law seeks to protect those with a protected characteristic, such as sex, race, disability or age. To succeed in a claim for indirect discrimination, the Claimant must show that the employer has an arrangement (known as a ‘provision, criterion or practice’ or PCP) that puts those with a particular protected characteristic at a disadvantage.

Unlike with direct discrimination cases, it can be a defence if the employer can provide a reasonable justification for this in that the PCP was a proportionate means of achieving a legitimate aim. A good example of indirect discrimination relates to the requirement to work full or certain hours.  Whilst this requirement may seemingly apply equally to all employees, the childcare disparity means that, on balance, women are going to have more challenges in complying with this. So unless an employer can objectively justify why certain working patterns are crucial to meet business needs, they may not be able to defend an indirect sex discrimination claim.  Of course such claims will be very case sensitive.

Last week the Employment Appeal Tribunal (EAT) focused on this issue as it handed down its judgment in the case of Dobson v North Cumbria Integrated Care NHS Foundation Trust.  Mrs Dobson, a nurse, had three children including two with disabilities and was initially successful with a flexible working request to work certain days only when her mother-in-law could provide the childcare.  However, in 2016 the Trust introduced a new rostering policy which included a review of all existing flexible working arrangements. As a result Mrs Dobson was asked to work the occasional weekend but she advised she was not able to accommodate this.  In short, the Trust went down the ‘fire and re-hire’ route, terminating the current contractual arrangement and offering new terms which Mrs Dobson was unable to accept.  Mrs Dobson lodged a claim for both unfair dismissal and indirect sex discrimination.

The employment tribunal dismissed her claims.  However, on appeal the EAT held that the tribunal had failed to consider the childcare disparity.  It did not matter whether other female employees in Mrs Dobson’s team could comply with the new working pattern.   The EAT found that the PCP was an employer requirement to work weekends and the Claimant lacked flexibility. In turn these shift requirements were going to be more of a challenge for women and therefore the decision was that the tribunal’s findings on justification and unfair dismissal would have to be remitted back to the tribunal to be reconsidered.

In this case the judge held that the assumptions made regarding the childcare disparity were still supported by evidence. While the childcare disparity is not a matter directed by statute, in its decision the EAT stressed that the childcare disparity should be taken into account as it is one that has been acknowledged by courts at all levels for many years.   It is so well known in the context of indirect discrimination claims it was incumbent on the tribunal to acknowledge this judicial notice of the childcare disparity.

Similarly, in the case of Hughes v Progressive Support Limited also heard recently at the EAT it was also found that there will be indirect sex discrimination if an employer requires an employee to work regardless of childcare needs even if no penalty is imposed on the employee for not complying.  In this case Ms Hughes did not lose her job or face a sanction, as such, for refusing to work certain hours.  However, she was threatened with a zero-hours style contact and therefore would not receive pay if she was unable to work.  The EAT held that there was an imposed PCP to perform a certain working pattern to receive full contractual hours and therefore full pay.  The matter has been remitted back to a tribunal to consider whether the PCP presents a disadvantage to female employees and if the employer can rely on the defence that this PCP is a proportionate means of achieving a legitimate aim.

These recent cases serve as a reminder to employers of how certain working arrangements and rules may disproportionately impact on groups who already face challenges in our society.

This blog is by Caroline Oliver, Senior Solicitor at Didlaw